Experts Discuss the Legal Problems in Relation To Anti-Unfair Competition and Anti-Monopoly in the Data Age
Created On : 2017-11-30    Views : 211

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On November 17, the Seminar on Legal Problems in Relation to Anti-Unfair Competition and Anti-Monopoly in the Data Age jointly sponsored by Shanghai Academy and the Institute of International Law of the Chinese Academy of Social Sciences was successfully held at Shanghai Academy. Researcher Wang Xiaoye, Director of the Competition Law Center of the CASS Institute of International Law, hosted the opening ceremony. Researcher Chen Su, Secretary of the CPC Party Committee of the CASS Institute of Law and the CASS Institute of International Law, and researcher Wen Xueguo, Executive Vice President of Shanghai Academy, Vice President of Shanghai University (temporary post), and Deputy Director of the Competition Law Center of the CASS Institute of International Law, addressed the event respectively.

Chen Su pointed out that, the subjects of development of the data market, prospering of the internet economy, and consumer protection are of high significance in the current context. He hoped that, at the seminar, the participating experts and scholars feel free to speak and to contribute their concerns and wisdom, and make contributions to the new development of China in the digital economy era.

Wen Xueguo firstly expressed his welcome to all experts and scholars coming to attend this seminar, and acknowledged that the subject of this seminar keeps pace with the times, and will be of far-reaching significance in the context of fast development of the digital economy. He pointed out that the new problems that emerge in the new digital era and new business models require forward looking discussion and study from the academic community.

Nearly 40 experts and scholars from law enforcement agencies, universities, research institutions and implementation entities, including; the State Administration for Industry and Commerce, the Ministry of Commerce, the Institute of International Law of the CASS Institute of Law, Nankai University, Shanghai Jiaotong University, China University of Political Science and Law, CASS University, the University of International Business and Economics, Shanghai University of Finance and Economics, East China Normal University, Central South University, Shanghai University of Political Science and Law, Beijing University of Industry and Commerce, Zhejiang Sci-Tech University, Shanghai University, Beijing University Press, the editorial office of Global Law Review, Ali Research Institute, Tencent Research Institute, Ant Financial, Hujiang.com, Nivea Inc., Cainiao Yizhan, and Shanghai Boss & Young Attorneys-At-Law, attended the event.

The seminar was divided into 5 parts. The first part was hosted by Researcher Wen Xueguo. Researcher Wang Xiaoye, researcher Xu Guangyao, member of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council and professor of Nankai University, Zhang Dan, deputy sectional head of the Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau of the State Administration for Industry and Commerce, and professor Wang Jian, Director of the Law School of Zhejiang Sci-Tech University, gave speeches respectively, and Zhao Guobin, sectional head from the Anti-Monopoly and Anti-Unfair Competition Enforcement Bureau of the State Administration for Industry and Commerce served as the commenting expert in this part.

Researcher Wang Xiaoye gave a speech entitled Several Questions Regarding Amendment to the Anti-Unfair Competition Law. She pointed out that, the newly amended Anti-Unfair Competition Law stresses regulation of behaviors in production and operation activities that disturb the market competition order, specifies the principle that "market problems should be solved by the market", and adheres to the basic purpose of the Anti-Unfair Competition Law of "maintaining the market competition order", which are of high significance. While, regarding relatively advantaged position, the law’s understanding about the relationship between anti-monopoly and anti-unfair competition is not very clear. In the context that the relationship between the Anti-Unfair Competition Law and the civil law field is very close, the Anti-Unfair Competition Law should place greater stress on protection of public power and public interest. Wang Xiaoye is of the opinion that, currently, it is inadvisable to include fair dealing activities into the scope of application of the Anti-Unfair Competition Law, and it is wrong to confuse the Anti-Unfair Competition Law with the Intellectual Property Law.

Professor Xu Guangyao gave a speech entitled The Antimonopoly Issue in the Data Age. Professor Xu gave an in-depth introduction about the criteria for determining position in the market. He said, good thinking and assessment should be conducted about the things that are worthy of anti-monopoly study brought by the data economy, and the impacts that the data economy brought on the substantive Anti-Monopoly Law. Lastly, Professor Xu said, presently, development of the internet in China has not raised serious challenges in the anti-monopoly area yet.

Zhang Dan gave a speech entitled The Newly Amended Anti-Unfair Competition Law's Regulation of Internet-based Business Operators. She pointed out that, the competition restriction provisions regarding public owned enterprises have been removed from the Anti-Unfair Competition Law, but the law still lacks regulation for public owned enterprises, which is a challenge that law enforcement agencies currently face. Zhang Dan also argued the necessity of including internet-related provisions in the newly amended Anti-Unfair Competition Law from the perspective of administrative supervision. She said, law enforcement agencies will clearly define the hierarchy of local law enforcement agencies as soon as possible; while it is advisable to adopt, an inclusive and prudent policy for regulation of the internet in the present.

In his speech entitled Interpretation and Thinking about the EU vs Google Case, Professor Wang Jian made detailed interpretation about the Google monopoly case from 4 aspects: determination of Google's abuse of its dominant position in the market; the EU's anti-monopoly punishment decisions on Google; the impacts of the Google monopoly case; and the EU's use of big data in the Google monopoly cases. Professor Wang Jian pointed out that, the vertical integration and platform oriented development of the internet platform certainly will bring some anti-monopoly problems.In such a context, we must pay close attention to the impacts that big data and artificial intelligence will have on such aspects as the determination, solidification and transfer of monopoly.

The second part of the seminar was hosted by Professor Xu Guangyao. Benjamin Bai, Vice President of Ant Financial, Dai Long, Executive Director of the Competition Law Research Center and professor of the School of International Law of China University of Political Science and Law, Han Wei from CASS University, and Associate professor Zhou Wanli from the Law School of East China Normal University, gave speeches respectively, and Cheng Ranran, sectional head of the Antimonopoly Bureau of the Ministry of Commerce, served as the commenting guest of this part.

Benjamin Bai gave a speech entitled A Look at the 'Data Monopoly' Issue from the Perspective of Intellectual Property Rights. He is of the opinion that data owners don't have exclusive rights over the data, and the Anti-Monopoly Law's application for data should not go beyond its application for intellectual property rights. In analyzing whether an operator has used data to exclude or restrict competition, the authorities should focus on the operation behavior itself, and should not presume that the operator enjoys a dominant position in a relevant market simply based on the fact that it has accumulated a large amount of data. He is of the opinion that, data monopoly related market analysis in the new situation should mainly focus on data provision type of products or services.

Professor Dai Long's speech was entitled Some Thoughts about Application of the Platform Neutrality Principle in the Data Economy Area. He made a comparison between the extension of traditional monopoly and unfair competition behaviors and new types of internet-based monopoly and unfair competition behaviors, and he is of the opinion that, in the newly amended Anti-Unfair Competition Law, the criteria for determining violation of law in the internet-related provisions is not clearly defined and cannot keep pace with unfair competition behaviors in the quickly changing internet economy. Therefore, he suggested that the platform neutrality principle be introduced in the data economy area.

Han Wei gave a speech entitled Antimonopoly Regulation for Algorithm Colluding. He pointed out in the speech, cloud computing, big data, mobile interconnection and other such technologies have given rise to the algorithm driven business model, while, application of algorithms may easily cause a risk of restricting competition by generating collusion. In this context, we may reconsider using the synergy effect theory adopted in acquisition & merger control. He also said that, currently, whether we should introduce the privacy issue into competition analysis still requires further consideration.

Associate professor Zhou Wanli gave a speech entitled Recent Development of Anti-Monopoly Law in Germany's Digital Market. He made a comparison between the current situations of China’s Anti-Monopoly Law and Germany’s Anti-Monopoly Law, and gave an introduction about the development process of relevant competition policies that Germany has rolled out regarding the digital market, over the recent years. Lastly, he discussed the question of the role and abuse of data in determination of the dominant position in the market in Germany's Anti-Monopoly Law enforcement practice with several anti-monopoly cases involving big data.

The third part was hosted by professor Li Guohai, Director of the Institute of Economic Law of the Law School of Central South University. Associate professor Yi Fang, Deputy Director of the Department of Trade Economy of Beijing University of Industry and Commerce, researcher Yang Jianhui, senior expert of Ali Research Institute, associate researcher Huang Jin, Deputy Director of the Research Office of International Economic Law, the Institute of International Law of CASS, and associate professor Chen Danzhou from the Law School of the University of International Business and Economics, gave brilliant speeches.

Associate Professor Yi Fang conducted an analysis surrounding "definition of relevant markets in the internet industry", and she is of the opinion that definition of relevant markets should be conducted with specific cases, and she said that some common features of product and demand in the internet industry will have some impacts on definition of relevant markets. Yi is of the opinion that, in conducting definition of relevant markets, it should be mainly based on qualitative analysis, while, in deciding the degree of market definition, quantitative analysis may be adopted as a supplement.

Researcher Yang Jianhui gave a brilliant speech entitled The Manifestation Forms and Factors to Be Considered for Data Related Monopoly Issues. He is of the opinion that, in the anti-monopoly process, as a source of market force, data undoubtedly will increase transparency of the market, but data and algorithm also may reach collusion, with the help of artificial intelligence. He also explained in detail several questions in relation to data opening means and rights protection.

Associate researcher Huang Jin gave a speech entitled Artificial Intelligence and Anti-Monopoly Regulation. He pointed out in his speech that, application of new technologies, represented by artificial intelligence, has brought new opportunities and challenges for our law application and law enforcement work. In the future, law enforcement agencies will certainly be concerned by the anti-unfair competition ability or potential that is brought by such new tools as artificial intelligence. He also said that, he hopes the area will get attention in future amendments to the Anti-Monopoly Law.

Associate Professor Chen Danzhou's speech was entitled Regulation of Abuse of Market Forces in the Data Age. He pointed out that, the driving force of internet platforms is very powerful, and the competition is becoming increasingly fierce: there is competition within platforms, and there is competition between different platforms.

The fourth part was hosted by Professor Dai Long. Associate professor Zhang Zhanjiang from Shanghai University of Finance and Economics, researcher Zeng Xiong from Tencent Research Institute, Lin Hua, Legal Director of Hujiang.com, and associate professor Jiang Shan from the Law School of the University of International Business and Economics, gave speeches respectively in this part, and Yao Jia, an associate researcher at the Institute of Law of CASS, and Deputy Director of the editorial office of Global Law Review gave comments on these speeches.

Associate Professor Zhang Zhanjiang gave a speech entitled Data Capturing in An Interest Balancing Framework. He advocates handling data capturing behaviors by an interest balancing approach, and he suggests that since the objective of the Anti-Unfair Competition Law is to protect competition, we should make good use of its institutional mechanism for protecting competition.

Researcher Zeng Xiong gave a speech entitled The 'Crime and Punishment' of Capturing of Data by Platforms. He is of the opinion that the current competition rules are still in the development period, and currently, there are still disputes regarding the ownership of data in China. He also said, collection of data by platforms must be reasonable, justified and legal, and we cannot capture data beyond the scope, and should follow the three-tiered principle of authorization.

Director Lin Hua's speech was entitled Will the Anti-Unfair Competition Law Tip Over in the Bend Brought by Internet. He conducted an analysis and evaluation of Article 12 "Internet Provisions" of the newly amended Anti-Unfair Competition Law, and concluded that the article has been developed without an in-depth understanding about the characteristics of internet technology and the internet industry, and it doesn't preserve sufficient flexibility for abundant and fast changing application practices of the internet.

Associate professor Jiang Shan gave a speech entitled Evolution of Cattell Discovery Structure in the Big Data Age. From the perspective of law enforcement agency or plaintiff, he conducted an analysis about the various Cattell scenarios that are likely to occur using various tools of big data.

The fifth part was hosted by Professor Wang Xianlin, former Executive Vice President of Kaiyuan Law School of Shanghai Jiaotong University, and member of the expert advisory group of National Antimonopoly Committee. Zhang Shihai, partner of Boss & Young Attorneys-at-Law, Ding Maozhong, associate professor of the Law School of Shanghai University of Political Science and Law, Sun Nanxiang, assistant researcher from the Research Office of International Economic Law of the Institute of International Law of CASS, and PhD candidate Yuan Bo from the Law School of Shanghai Jiaotong University, gave their speeches respectively.

Zhang Shihai gave a speech entitled The Exemption System’s Value in Law Enforcement Regarding Competition, which describes the exemption system in China, and conducts an analysis about the situation and problems that may arise in actual implementation of the exemption system. He said, enterprises covered by FCPA usually conduct voluntary disclosure to obtain exemption, and compared with the system in foreign countries, the importance of the exemption system in China is increasing, while, there are still some doubtful voices about the system.

Associate professor Ding Maozhong gave a speech entitled The Successful Points and Failure Points in the Aspect of Commercial Bribery in the Amendment to the Anti-Unfair Competition Law. He is of the opinion that an important advancement in the latest amendment to the Anti-Unfair Competition Law is that it redefines the nature of commercial bribery, and it covers bribery by employees; in spite of these improvements, there still exists a risk of generalization of commercial bribery in the new law. Ding Maozhong is of the opinion that, after amendment, the Anti-Unfair Competition Law's deterring force for legal responsibility is greatly increased, however generally, the punishment  is a little too heavy.

Assistant researcher Sun Nanxiang made a speech entitled Protection of Consumers' Rights and Interests in Agreements for Internet Based Services. He pointed out that this subject involves two questions: One question is the price of information. Since all information and data is valuable, a mechanism of equivalent dealing needs to be established.Secondly, overall measurement of the value of the data on the internet requires reconstruction of some new perspectives, so as to allow both the Law on Protection of the Rights and Interests of Consumers and the Anti-Unfair Competition Law to regulate market order, and to explore about the market mechanism's role in information governance.

Yuan Bo gave a speech entitled Some Reflections and Proposed Improvements for the Injunction Remedy Legislation for Standard and Necessary Patents. He is of the opinion that currently, the scope of application of relevant normative documents in China is relatively narrow, and relevant requirements are not clearly stated, which results in that the interests of relevant parties are not well balanced, and public interests are not sufficiently covered. In such a context, we need to clearly define the division of labor between the Patent Law and the Anti-Monopoly Law.

 

(Text by Mao Yujie, and photo by Zhao Lu)